This past year has opened our eyes to new challenges and questions that need to be addressed in the workplace.

As a result of the COVID-19 virus, many businesses and industries attempted to stem the growing infection rate by working allowing employees to work remotely, initiate safety protocols, or close their doors temporarily. But now, as vaccines are readily available to the public, businesses are attempting to make a return back to normalcy, or as close as possible to pre-COVID-19 times.

However, even as vaccines are ready for the public, we have seen the effects that the Delta variant had on our society just as we were working toward a normal setting. Also, businesses face the possibility of other potential variants beginning to disrupt our society again.

As a result of these new COVID challenges, companies are considering new tactics to remain open, and keep their employees safe.

Currently, employers are shifting to require COVID-19 vaccines as a condition for many positions. Companies requiring the vaccine include Citigroup, Deloitte, Google, and McDonald’s.¹ While these are only a few, COVID vaccine requirements can be seen throughout the country in companies ranging from a few employees to tens of thousands.

However, while businesses are attempting to make a decision that they believe is in the best interest of their workplaces, there are those who are strongly against such a required condition for employment.

It is this conflict and the correlating accommodations that will need to be considered when advising business clients on this issue.

Is the Vaccine Requirement Legal?

One question that comes to mind for business clients is whether it is legal to even require mandatory vaccines as a necessary condition for employment.

In order to determine the answer, it is beneficial to refer to Equal Employment Opportunity Commission as an initial source. Also, there are various federal anti-discrimination laws that can provide useful information, such as:

• the Americans with Disabilities Act (ADA);

• the Rehabilitation Act;

• Title VII of the Civil Rights Act; and

• the Age Discrimination in Employment Act.

Implementing a Vaccine Requirement Policy

While these federal acts provide a guideline for many issues that may arise with mandating the COVID-19 vaccine, there is yet to be a golden, clear-cut standard for the implementation of such a policy.

For example, when reviewing the ADA, Title I of the Act prohibits employers from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, and other related matters of employment.²

Due to these regulations and legal standards, it is important when determining the extent and requirements of your company’s COVID-19 vaccine policy to consider accommodations that will be needed and how to handle the volume of accommodation requests that will arise after announcing your policy.

Accommodations: Medical and Religious

Hopefully, your place of business already has in place a procedure to determine whether accommodations are required for an employee. If not, the first place to begin is to determine whether your business is covered by the ADA and Title VII. The ADA and Title VII apply to employers with 15 or more employees.

Next, take steps to have a policy and procedure in place for the handling of accommodation requests. Forming a structured procedure ensures that each case is reviewed according to the same requirements and practices.

When reviewing request for medical versus religious accommodations, different steps will be necessary to determine whether each one qualifies.

First, when reviewing a medical accommodation request, review the definition of what a “disability” is as defined by the ADA and also who is considered as a “qualified individual with a disability” as stated by the ADA. Relying on the ADA’s definitions will provide guidance on whether an employee qualifies for a medical accommodation.

In regard to an accommodation due to a religious belief, the Equal Employment Opportunity Commission (EEOC) states that "factors that either alone or in combination – might undermine an employee's assertion that he sincerely holds the religious belief at issue include:

• whether the employee has behaved in a manner markedly inconsistent with the professed belief;

• whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;

• whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and

• whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons."³

Using these factors as a foundation for evaluating religious accommodation requests will help with your workplace’s review procedures.

Overall, the ADA requires employers to grant an employee’s accommodation request. The exception to this requirement is if the accommodation would result in undue hardship on the employer or if such an accommodation would be a direct threat to the health and safety of others. In order to determine whether a direct threat exists, it is beneficial to refer to the EEOC for guidance.

Although having a well-structured procedure in place for the volume of accommodation reviews is crucial to your workplace, it is also just as crucial to consider what will the accommodations will be in lieu of the COVID-19 vaccine.

Some examples that may be appropriate are:

• allowing noncrucial employees to continue to work remotely;

• having a mandatory mask requirement for those with approved accommodation requests;

• periodically testing employees who have approved accommodation requests; and

• having employees come into the office on alternating days.

Conclusion: Necessary Factors

While this is not meant to be an all extensive exploration of the standards and requirements for implementing a sound procedure for your workplace, these factors are necessary to consider as our society works to a return to “normalcy.”

This article was originally published on the State Bar of Wisconsin’s Business Law Blog. Visit the State Bar sections or the Business Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ Haley Messenger, From McDonald's to Goldman Sachs, here are the companies mandating vaccines for all or some employees, NBC News, Oct. 26, 2021.

² See Americans with Disabilities Act of 1990, 1990 Enacted S. 933, 101 Enacted S. 933, 104 Stat. 327, 101 P.L. 336, 1990 Enacted S. 933, 101 Enacted S. 933.

³ EEOC, Questions and Answers: Religious Discrimination in the Workplace, Nov. 3, 2021.